America's Immigration Gulags Overflowing With Mentally Ill Prisoners
The number of mentally and developmentally disabled detainees in South Texas federal immigration detention centers has surged during the past year, according to area attorneys who call the trend "alarming."
Since the U.S. Department of Homeland Security ended the catch-and-release system in 2006, which allowed undocumented immigrants to go free until their date in immigration court, the number of detention centers has mushroomed.
But detention, which presents a variety of obstacles for detainees, can be perilous for the mentally and developmentally disabled.
"All protections that exist in other areas of the law (for mentally and developmentally disabled individuals) do not exist for these respondents," said Greg Pleasants, the Equal Justice fellow at Advocacy Health Services of Los Angeles. "There's no procedure to have incompetence evaluated. There's no procedure to have a guardian appointed."
DHS did not immediately respond to requests for statistics on the precise rise in such detainees, but local attorneys say the increase is obvious, and dangerous.
Take the case of Pierre Bernard, a Haitian immigrant detained in Port Isabel until Friday.
In October, Bernard, who suffers from a psychotic disorder, was deemed incompetent to stand trial in a criminal court for an assault charge. He was ordered to undergo six months of psychiatric treatment that was supposed to begin Oct. 22 at Boston's Bridgewater State Hospital.
But the day after he arrived at the hospital, Bernard was detained by Immigration and Customs Enforcement.
Undocumented immigrants convicted of crimes are routinely detained once they have completed their time in prison and often are deported. In Bernard's case, he was mistakenly detained before his commitment at a prison hospital was completed.
By November, Bernard was in the Port Isabel Detention Center, 2,000 miles away from his eight month pregnant girlfriend and criminal defense attorney.
For the average detainee, this distance alone is a substantial obstacle. They must purchase calling cards inside the detention center to find legal representation - the government provides no representation.
Often, detainees with limited knowledge of the law, a language barrier and without legal representation face government lawyers and immigration judges.
What worries Bernard's lawyer, South Texas Pro Bono Asylum Representation Project attorney Maunica Sthanki, is what happens when an individual like Bernard, already deemed incompetent and in need of psychiatric treatment by a criminal court, arrives in South Texas.
Bernard's "Notice to Appear" in immigration court states that he entered the country at an unknown place on an unknown date, Sthanki said.
"Because Mr. Pierre Bernard's immigration case is active in litigation, we are not in a position to provide details surrounding this matter," DHS spokeswoman Nina Pruneda said in an emailed statement.
Due to Bernard's mental limitations, Sthanki is stuck in a "Catch-22" situation: she cannot learn enough from her client to provide the information necessary to obtain his records. "The most he could say was, ‘I don't feel well,' or ‘I want to see the baby,' " Sthanki said of Bernard. "Otherwise he gave me one and two word responses."
Lisa Brodyaga, a Harlingen immigration attorney who has worked in the area for 30 years, says she's received several phone calls during the past few months from attorneys struggling to represent mentally and developmentally disabled detainees.
"It used to be that if you had a real hardship case you could talk to the head of deportation and you could work something out," Brodyaga said. "You could get people out who were seriously ill."
Now, she says, high risk individuals like Bernard can get locked into a system that can be dangerous to their health.
"Until recently I hadn't heard of (ICE) raiding the mental hospitals and detaining people from there," she said, referring to Bernard being picked up at the hospital. "But I could tell you a million ways in which the humanity has been taken out of the immigration system."
ProBAR alone has taken on the cases of five mentally disabled detainees since July.
In the end, Bernard and Sthanki were lucky. Bernard's criminal attorney contacted Sthanki and sent her the documents she needed to demonstrate that Bernard had been prematurely removed from the Boston hospital, information she wouldn't have been able to obtain without his initiative.
DHS admitted that it rushed the deportation proceedings against Bernard and terminated deportation action, Sthanki learned on Friday, just as Bernard was being returned to the Boston hospital by order of Harlingen Immigration Judge David Ayala.
Sthanki is unable to explain the increase in mentally and developmentally disabled detainees, but she says it's probably an offshoot of the general increase in people in detention. According to ICE's Web site, the average number of aliens in detention increased from 20,838 in 2002 to 31,345 in 2008.
Most mentally and developmentally disabled detainees will likely not have Bernard's luck.
Without Sthanki, Bernard would have likely been deported back to one of the world's most unstable countries, away from his unborn child and medical resources that could provide him with treatment.
Pleasants, the Equal Rights fellow, said the lack of protections for mentally and developmentally disabled detainees is also a problem for judges.
"I think immigration judges want guidance on these issues too because most of them care about doing a good job and want to do right by people," Pleasants said. "When a (disabled) person has no lawyer, it's hard to do a fair job."
The difference of protections afforded Bernard during his criminal and immigration trials exemplify a basic disparity in how immigration defendants and criminal defendants are viewed, said Pleasants. Alleged criminals are entitled to psychological evaluations, legal representation, and medical treatment to ensure a fair trial. Immigration detainees are not necessarily entitled to any of these.
"The reason these cases aren't more public is because there are serious barriers for the person making his or her voice heard," Pleasants said.